NHS ignores gene patents, experts say

By Clive Cookson, Science Editor

Genetic testing laboratories in the National Health Service are deliberately ignoring most patents on DNA, experts told a meeting in London on Friday.

“The view from the NHS is that, for diagnostics, gene patents are unacceptable, unenforceable and detrimental to the delivery of patient services,” said Gail Norbury, commissioning and governance director of the Genetics Labs at Guy’s Hospital, who is one of Britain’s leading clinical geneticists.

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Although hundreds of UK and European patents could cover gene testing, Ms Norbury said NHS laboratories generally ignored them, both because senior staff regarded gene patenting for diagnostics as unjustified and because they did not think patent holders would take enforcement action.

Michael Hopkins of the Science Policy Research Unit at the University of Sussex, who has carried out extensive surveys of gene patenting, said the views put forward by Ms Norbury reflected attitudes in healthcare systems across Europe.

“Many of these labs are ignoring intellectual property at the moment, feeling that the patents are not justified,” he told the meeting, which was held by the Human Genetics Commission, a government advisory body, to launch a report on DNA patents.

The report calls on the Department of Health and other policymakers to address the confusion about the fair use of tests covered by DNA patents – and the “profound tension between the industry’s desire to exploit the financial value of [diagnostic] patents and the routine infringement of such intellectual property in NHS laboratories”.

Mr Hopkins said patent holders had not yet taken significant action for the infringement, because the amount of royalties they were losing were still relatively small, compared to the financial costs of enforcement and the potential damage to their reputation. “Many companies would shy away from suing a hospital,” he said.

But he warned that hospitals could not count on continued inaction, as diagnostic testing becomes a more important part of clinical practice – particularly if the NHS privatises genetic laboratories, which would then be more tempting targets for enforcement. “As time goes on, it’s more likely that a company will become hungry enough to sue,” he said.

Speaking for the diagnostics industry, Berwyn Clarke, chief scientist of Cambridge-based Lab21, lamented the attitude of the NHS – in contrast to the US where patents were taken more seriously. “The UK should be one of the best countries in the world to operate but at the moment it is one of the worst,” he said.